Jacqui Lambie's attempt to ban the burqa could be unconstitutional, say legal experts

Jacqui Lambie's private member's bill aimed at banning the burqa in Australia could be unconstitutional, two leading lawyers say.

The Palmer United senator has announced plans to introduce a bill to ban the facial covering worn by some Muslim women but it could violate section 116 of the constitution which states "The Commonwealth shall not make any law …for prohibiting the free exercise of any religion".

Senator Lambie said in a statement on Monday that she would be seeking to ban "identity concealing religious garments" and hoped it would be put to a conscience vote. The Tasmanian senator added "I've yet to discuss this matter in detail with other PUP colleagues".

Palmer United leader Clive Palmer has publicly distanced himself on several occasions from Senator Lambie's strident comments on sharia and the burqa.

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Constitutional expert George Williams told Fairfax Media the intent of Senator Lambie's bill could see it fail.

"A law banning the burqa per se throws up constitutional red flags and may well be struck down under section 116," he said.

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Professor Williams said a law aimed at preserving identity checks for the purpose of national security might fare better but said "if you had a law banning people from covering their face it would be unworkable, it would frankly be a bit silly, which goes to the heart of this debate".

Human rights lawyer George Newhouse told Fairfax Media Senator Lambie's proposal could violate the exact section of the constitution she is using to condemn Sharia law.

Palmer United senator Jacqui Lambie says she intends to introduce a private members bill to ban the burqa. Photo: Andrew Meares

"She's correct to argue that imposing Sharia law on all Australians would be unconstitutional but you'd think that she'd take five minutes to read the rest of the same section to realise that her proposal just won't fly," he said.

"Without seeing the exacts terms of her proposal it would seem to offend section 116 of the Australian constitution which precludes the Commonwealth from prohibiting the free exercise of any religion, and that would include Islam," he said.

Liberal senator Cory Bernardi, who has been in the Parliament since 2006, also wants the burqa banned but has never attempted to introduce a similar bill.

He said on Monday he would be watching Senator Lambie's proposal carefully.

"I'll be interested in the content of Senator Lambie's bill because my historical advice is that the Commonwealth doesn't have the constitutional powers to ban the burqa," he said.